IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60313

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

H. CLAIBORNE FRAZIER,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 3:12-CR-141

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

H. Claiborne Frazier pleaded guilty, pursuant to a plea agreement 

containing an appeal waiver, to conspiracy to commit bank fraud, mail fraud, 

and wire fraud and was sentenced to 60 months of imprisonment, to be followed 

by three years of supervised release. He was also ordered to pay $8,540,596 in 

restitution. Frazier now appeals. He argues that the Government breached 

the plea agreement by advocating for the inclusion of relevant conduct in 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2016

Lyle W. Cayce

Clerk

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determining his offense level; therefore, Frazier argues that he should have 

been allowed to withdraw his guilty plea.

Frazier may raise an argument that the Government breached the plea 

agreement despite the waiver provision. See United States v. Keresztury, 293 

F.3d 750, 756-57 (5th Cir. 2002) (holding that when the Government has 

breached a plea agreement, the defendant is necessarily released from any 

appeal waiver provision contained therein). Whether the Government’s 

conduct violated the terms of the plea agreement is a question of law, which 

we review de novo. United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000).

In determining whether the terms of a plea bargain agreement have been 

violated, we assess whether the Government’s conduct is consistent with the 

parties’ reasonable understanding of the agreement. United States v. 

Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). If the Government breached the 

plea agreement, the defendant may seek one of two remedies: (1) withdrawal 

of his guilty plea or (2) specific performance of the plea agreement, which would 

require resentencing by a new judge. Id.

The record reflects that the terms of the plea agreement were clear. The 

Government agreed to limit the overt acts included in the factual basis but

there was no restraint on the consideration of relevant conduct for sentencing 

purposes. The plea agreement specifically stated that relevant conduct would 

be considered. The plea agreement also stated that Frazier was “liable to make 

restitution for the full amount of the loss determined by the Court, to include 

relevant conduct, which amount is not limited to the count of conviction.”

Additionally, at rearraignment, the district court informed Frazier of the 

inclusion of relevant conduct for sentencing purposes. The Government did 

not breach the plea agreement by supporting enhancements based on relevant 

conduct, and Frazier was not entitled to withdraw his guilty plea. See 

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Gonzalez, 309 F.3d at 886; see also United States v. Hoster, 988 F.2d 1374, 1378 

(5th Cir. 1993) (holding that the Government did not breach its agreement not 

to prosecute the defendant for additional offenses when presentence report 

included uncharged drugs as offense conduct).

Frazier also contends that the amount of restitution ordered by the court 

was not based on sufficient evidence. He argues that the Government failed to 

prove the amounts awarded and failed to establish that Frazier was part of the 

relevant conduct considered in determining the restitution amount. The 

Government argues that this argument is barred by Frazier’s valid appeal 

waiver. Frazier argues that the appeal waiver does not bar his challenge to

the restitution order because an award of restitution based on insufficient 

evidence results in a sentence above the statutory maximum. Because the 

record shows that a potential restitution order was discussed at rearraignment

and at sentencing and because the plea agreement defined “Sentence” to 

include restitution, the appeal waiver bars Frazier’s challenge to the amount 

of the restitution order. See United States v. Keele, 755 F.3d 752, 755-56 (5th 

Cir. 2014). 

Additionally, Frazier did not specifically reserve the right to appeal a 

sentence exceeding the statutory maximum. Issues waived in a valid and 

enforceable waiver need not be considered on direct appeal. United States v. 

Bond, 414 F.3d 542, 546 (5th Cir. 2005).

Even if we were to apply an exception to Frazier’s appeal waiver to allow 

a challenge to a sentence exceeding the statutory maximum, his arguments do 

not fall within such an exception. “The [Mandatory Victims Restitution Act] 

MVRA does not permit restitution awards to exceed a victim’s loss.” United 

States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006). Frazier’s argument that 

he was not responsible for certain restitution amounts because the 

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Government did not adequately prove that he jointly undertook the actions in 

the conspiracy is not a challenge to the sentence exceeding the statutory 

maximum because this argument does not contend that the amount awarded 

exceeds the victim’s losses. See United States v. Sharma, 703 F.3d 318, 322 

(5th Cir. 2012) (“An award of restitution greater than a victim’s actual loss 

exceeds the MVRA’s statutory maximum.”). Because the statute does not 

provide that offsets may be used in determining the amount of actual loss, 

Frazier’s argument that the district court failed to consider evidence of 

payments made to the victims in the form of settlements and other repayments 

does not constitute a challenge to a sentence in excess of the statutory 

maximum. See 18 U.S.C. § 3664(f)(1)(B); Sharma, 703 F.3d at 322. 

Accordingly, Frazier’s knowing and voluntary appeal waiver bars his challenge 

to the restitution order. See Keele, 755 F.3d at 755-56. 

The judgment of the district court is AFFIRMED.

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